Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-10-25
COURT OF APPEALS.
The fraudulent Taking ia Al Theft
Cases Should bs Plainly and
Directly Charged.
Ths Jury's Right to Know this Oharsctor Of
Witness and the Attorneys Right to
Comment on His Credibility.
Jorresnondenee of the Gszette.

Correspondence of the Gazette.
TYLER, Tex, Oct. 22.-Modesto Gran
ger vs.. the State; appeal from Webb.
This is conviction for assault with in
tent TO murder. The court failed to
charge the jury on manslaughter and this
appellant assigns as error. The prose-
cutting witness said to appellant: "You
had better 60 to work, and not make q
living at the sacrifice of your mother"
Appellant then walked to the
counter of the saloon, procured
pistol and fired at prosecuting
witness. Held: It cannot be contended
that this was insulting language towards
appellants mother. Appellant had no
reasonable ground to, and could not
place such construction on this language.
The failure to charge on manslaughter
was notSerror. Affirmed. Hurt, j.
John Holsey VS.. the State; appeal from
Bexar. Article go of the G. G. P. which
prescribes the order in which trial be-
fore jury shall be conducted, provides
district attorney or the counsel
p1O5CSut1uS III ulS dUSCuSCy CAdL4 SValC
to the jury the nature Of the accusation,
and the facts which are expected to be
proven by the state in support thereof"
Held: This subdivision is merely direct
| ory, and disregard thereof, unless it
can be shown that defendant was preju-
diced thereby, is not in our opinion per
/ Sc reversible error. AZ Texas, 5S1.
Where the character of q defendant is
in question the inquiry must be limited TO
the general reputation in the community
of his residence, or where he is best
known, and the witness must speak from
his knowledge of this general char
acter, and not from his own indi-
ViduaI opinion. ID G. A., 255. ]
The state was permitted over objec-
! tons of defendant to prove the character
of appellants associates: Held: We
know of no rule of evidence which author
lied this, and for this error the verdict
cannot stand. In defining theft the court
below omitted the word fraudulent. !"
Held: The fraudulent taking in all theft
cases should not be left to inference, but
should be plainly and directly charged.
For the admission of illegal testimony
noted above the case is reversed and re-
msnded. Wilson, j.
il. Melton vs.. the State; appeal from
Cass. This was conviction for murder.
Appellant urgently contends that it is q
clear case of granddaughter. The evil
deace shows that the homicide was occa-
sf5ned by and was the result Of insulting
and defamatory statements made by de-
ceased about the daughters of defendant.
After being informed of deceased having
used this defamatory language, defendant
declared his intention OF killing him, aud
started from home for that purpose. He
saw deceased that day and had favorable
opportunity for putting his threat into
execution, but returned nome. Thenext
day be again sought deceased, raised an
alteration with him and killed him.
Held: That under these facts the homi-
| eide could not have been msnslaughter,
because he did not kill him when he first
met him, or had an opportunity TO kill
MIN after having been informed of the in
suits. P. G. Arts. s97 (sub-division y,
598, % G. A 265 There is no reversible
error. Affirmed. White, p. J.
Felipe Arellsno VS.. the State; appeal
from Duval. This WAS q conviction fol
murder in the second degree. The evil
dence shows that appellant rode up to the
house of deceased and told him that he
(the deceased) had been telling that ap-
pellant had stolen some horses. Deceased
laid down hoe with which he was rak-
ing up some trash in the yard, went up to
appellant, who was on horseback, seizsd
his horses bride with one hand and one
of defendants hands with the other
They had kind of melee around the
yard. defendant being on his horse. After
scuffling for some time, there being nc
blow struck by either party, deceased re'
leased his hold and started toward the
pelIant had drawn his. pistol
and was holding it in his hand
When deceased started towardthe house
appellant shot him, and just before he
entered the door, shot him 9 second
time. In the court below appellants
counsel asked an instruction upon tbs
law of manslaughter, which was .refused
Held: II appellants intention was te
provoke a difficulty or produce the
| occasion for the Staying O.
deceased he would be guilty Of murder
On the other hand, if this was not his in
tention, then charge OF manslaughtel
was demanded by the facts. Hence the
necessity for submitting to the jury the
law governing csse in which the &C.
cused provoked the difficulty as well es
tie law on manslaugbter, so that the jurl
could passsupon both of these PROPOSE
tions. The refusal to charge on man.
slaughter was error. Reversed and re-
msnded. Hurt, j.
John Bennett vs.. the State; appeal
from Johnson. The state placed wit
ness on the stand who swore as folio VS.:
81 never heard defendant say anything
shout the Sparks yearling." After thi'
the state, over the objections of de
PENDANT, introduced testimony for the
purpose of impeaching said witness, unde
Art. 755 c. G. P. Held: While in the
admission Of this testimony the state wa!
no doubt surprised by what witness
swore, yet we do not think proper and
sufficient case in which the impeachment
of ones own witness would be allowable
is established by the facts shown
We can not conceive how thi!
testimony could be injurious Il
either party. In permitting the impeach
ment the court erred. Defendant called
his father, Richard Bennett, to testify
The state objected on the ground tha
said Bennett had been convicted Of {
felony, whereupon said Bennett produced